W.C. No. 4-512-542Industrial Claim Appeals Office.
January 23, 2003
FINAL ORDER
The respondents seek review of a Supplemental Order of Administrative Law Judge Coughlin (ALJ) which awarded scheduled disability benefits based on 14 percent impairment to the lower extremity. We modify the award and as modified, affirm.
The claimant suffered a crushing injury to her left foot and fractured the 2d 3rd, and 4th metatarsal bones. The injury was surgically treated by installing a plate, screws and K-wire pin. Her foot was also immobilized in cast. Dr. Kohake opined the claimant sustained 0 permanent impairment from the industrial injury.
The claimant was also evaluated by Dr. Harder, who assigned 11 percent impairment for lost range of motion in the lower extremity as provided by the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides) and 3 percent for metatarsalgia secondary to the injuries. Dr. Harder’s combined rating was 14 percent impairment of the lower extremity.
The ALJ found metatarsalgia is a general term for pain over the “ball of the foot.” Crediting the claimant’s testimony, the ALJ found the claimant experiences pain and swelling in her left foot, walks with a slight limp and has modified her activities of daily living due to persistent foot pain caused by the industrial injury. The ALJ determined that the claimant’s permanent impairment to the left lower extremity is “properly rated under the AMA Guides as 14% based on range of motion loss and Metatarsalgia as determined by Dr. Harder.” In support, the ALJ found Dr. Harder’s 3 percent rating:
“is reasonable, appropriate, and supported by his physical exam findings, Claimant’s credible report of persisting post-operative pain which interferes with activities of daily living, and the unique facts of this case.”
Therefore, the ALJ awarded scheduled disability benefits based on 14 percent impairment to the lower extremity. The respondents timely appealed.
On appeal, the respondents do not dispute the scheduled disability award based on 11 percent impairment for range of motion deficits in the lower extremity. The respondents’ sole contention is the ALJ erred in awarding benefits based on the 3 percent rating for metatarsalgia. The respondents contend, inter alia, the disputed rating is not consistent with the AMA Guides. We agree.
The claimant bears the burden to prove her entitlement to permanent partial disability benefits under § 8-42-107 C.R.S. 2002. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, § 8-42-101(3.7), C.R.S. 2002, requires all physical impairment ratings to be based on the AMA Guides. It follows that the claimant must prove that the preferred rating is based on the AMA Guides.
Whether a physician rated the claimant’s impairment in accordance with the AMA Guides is generally a question of fact for resolution by the ALJ. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995); Rivale v. Beta Metals, Inc., W.C. No. 4-265-360 (April 16, 1998), aff’d., Rivale v. Industrial Claim Appeals Office, Colo. App. No. 98CA0858, January 28, 1999 (not selected for publication). The ALJ’s determination is binding on review if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. However, if the evidence presented permits only one reasonable inference, the issue is one of law which we may determine independent of the ALJ’s conclusion Schrieber v. Brown and Root, Inc., 888 P.2d 274 (Colo.App. 1993).
As argued by the claimant, § 2.1 at page 6 of the AMA Guides (copy contained in the record) provides that the assessment of medical impairment involves three steps. The first step is to conduct a “through medical evaluation.” The second step is determine the nature and “extent of the loss, loss of use of, or derangement of the affected body part, system or function.” The AMA Guides contain some evidence that step two may include consideration of the functional impairment of activities of daily living. See § 2.3 at page 7. However, the third step of the physician’s assessment of permanent medical impairment requires the physician to “compare the results of the analysis with the criteria specified in the [AMA Guides] for the particular body part, system, or function.” (Emphasis added). The AMA Guides add that “this process is distinct from the prior clinical evaluation,” and that any knowledgeable person should be able to replicate the rating by comparing the clinical findings to the AMA Guides.
Here, Dr. Harder admitted the AMA Guides do not address metatarsalgia in a specific manner. Rather, Dr. Harder stated that:
“[B]ased on the activities of daily living, which are interfered with, and comparing this with other injuries for which ratings are prescribed, I would give her an additional 3% impairment of the lower extremity.”
Nothing in Dr. Harder’s report nor the AMA Guide excerpts found in the record contains any evidence that the AMA Guides include criteria for the assignment of a 3 percent rating for impairment of activities of daily living caused by metatarsalgia. Indeed, Dr. Harder admitted that he assigned the rating by analogy to ratings for other injuries, but cites no authority in the AMA Guides for doing so. Under these particular circumstances, the record is legally insufficient to support the ALJ’s determination that Dr. Harder’s 3 percent rating was assigned in accordance with the AMA Guides.
In the absence of a finding that the contested portion of Dr. Harder’s rating is in accordance with the AMA Guides, the ALJ’s findings do not support her determination that the claimant sustained her burden to prove entitlement to permanent partial disability benefits based on 3 percent impairment for metatarsalgia. Therefore, we set aside the contested portion of the award.
In view of our disposition we need not consider the respondents’ further argument that the 3 percent rating was based on the claimant’s subjective complaints of chronic pain without anatomic or physiologic correlation in violation of § 8-42-107(8)(c). Neither have we considered the respondents’ contention that the claimant’s left foot pain is indicative of a temporary pain during the healing process and is not a permanent condition for purposes of assigning a permanent impairment rating under § 8-42-107(8)(d), C.R.S. 2002.
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated June 12, 2002, is modified to award permanent partial disability benefits based on 11 percent impairment to the lower extremity and, as modified, the ALJ’s Supplemental Order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
David Cain
____________________________________
Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,CO 80203, by filing a petition for review with the Court, within twenty(20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed __________January 23, 2003 ____________to the following parties:
Bonnie Barnes, 3005 S. Zurich Ct., Denver, CO 80236
Connie Booth, Compass Logistics, 10251 E. 51st Ave., #A, Denver, CO 80239
Jane Madsen, ESIS, P.O. Box 2941, Greenwood Village, CO 80150-0141
Douglas R. Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
David J. Dworkin, Esq. and Margaret Garcia, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)
BY: __________A. Hurtado__________